The First Contemporary Culture Warrior

Burt Likko

Pseudonymous Portlander. Pursuer of happiness. Bon vivant. Homebrewer. Atheist. Recovering Republican. Recovering Catholic. Recovering divorcé. Editor-in-Chief Emeritus of Ordinary Times. Relapsed Lawyer, admitted to practice law (under his real name) in California and Oregon. There's a Twitter account at @burtlikko, but not used for posting on the general feed anymore. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.

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49 Responses

  1. PPNL says:

    I like Timothy Sandefur’s take on Bork. Bork would have been a nightmare on SCOTUS.

    • Tim Kowal in reply to PPNL says:

      One can agree with much of Sandefur’s criticisms and yet not come to the conclusion he would have made a bad Justice. There is a lot of terrible judicial philosophy on SCOTUS to which Bork may have served as a counterweight.

      As I see it, there are two basic varieties of conservative jurisprudence: interpretivist (e.g., Bork, Scalia) and natural law (e.g., Thomas). Natural law is often disfavored among conservatives, and not unreasonably so, because it is only subtly distinguishable from the word soup that I often complain characterizes left-progressive jurisprudence. There have been times when I was very sympathetic to Bork’s views. In fact, even while I’m closer to folks like Barnett and Sandefur on what the Constitution really means (see here, for example), there’s an argument that we’d be better of if we interpreted it like Bork and Scalia do (see here, for example), because we might then embrace this basic premise:

      “The actual Constitution does not forbid every ghastly hypothetical law, and once you begin to invent doctrine that does, you will create an unconfinable judicial power.”Report

      • PPNL in reply to Tim Kowal says:

        Well I agree that the constitution does not forbid every ghastly hypothetical law. It does however forbid some ghastly real laws. The problem is Bork reads the limits of government so narrowly that he would vastly increase the power and reach of government. We would all then be forced to be progressives of one form or another. Our only choice would be to become a liberal progressive using government to solve every social problem or a conservative progressive using government power to impose gods holy rule on earth.

        And I have never bought into the powerful unconfinable judicial power scare. Yes it is a concern but of all the places where government is doing bad things the courts are at the bottom of the list.

        Just look at the cases where the courts have been accused of using excessive power.

        The first that comes to mind is Roe v. Wade. The worst that can be said about it is that it lets individuals do things that we may feel is “ghastly”. It effectively returns a negative liberty back to the people. It does not increase either judicial or legislative power but rather limits it. In general I prefer people having the right to do ghastly things over the government having the power to do ghastly things.

        Next that comes to mind is Lawrence v. Texas. Again no matter what you think of same-sex sexual activity the ruling did not increase either judicial power or legislative power. In returning negative liberty back to the individual it reduced the power and reach of government.

        Ditto with Loving v. Virginia. I know people who claim to become physically ill at the thought of a black man having sex with a white woman. They have a right to their “ghastly” beliefs. The courts severely limited their power to use the power of government to impose those views on others.

        In general it is politicians who have had their power limited that complain about a powerful judiciary. They are more of a threat than the judges.Report

        • Will H. in reply to PPNL says:

          You think too much about hot-button issues rather than the everyday workings of the courts.
          I have a few thoughts going through my head about common law immunities and the Tenney decision, but I’ll reserve that for a comment below.

          I leave you with this.

          . . . and to say that I would have really loved it if Chief Justice Roberts would have brought up the Slaughterhouse Cases and started talking at length about that when he was being grilled about stare decisis.Report

          • Burt Likko in reply to Will H. says:

            The complaint here is that family law judges, and then magistrates, in Rhode Island both obtain their positions through a corrupted political patronage system and hold those positions for life, with no form of review and resistance by the Legislature to losing the ability to pass out these plums. This is a problem with the system of appointing judges, not a problem with the behavior of those judges once appointed. If Rhode Island is politically corrupt, that is not a judicial problem but a political one; the judicial corruption the speaker hints at (but does not explicate) is a byproduct of the political corruption and not the other way around.

            There is also a complaint that lawyers are expensive and admission to the Rhode Island bar is made intentionally difficult. This is not a complaint to which I am not particularly sympathetic even setting aside my own self-interest in attorney’s fees (yes, I admit that I make sarcastic references to “the Guild” from time to time.). But in sobriety, lowering barriers to the practice of law would decrease the quality and efficiency of the services the courts deliver. Sit in on a case in which there are typical litigants representing themselves, and compare that to a case in which there are attorneys representing the parties, and you will see what I’m talking about. In which case does the judge have more power? In which case does it seem more likely that the law will be followed, and that justice (defined here as “substantial fairness to both sides”) will be done?

            There is not a complaint made in the video you linked that the family courts have overreached beyond the power explicitly granted to them by statute, or that they have adopted a pattern of rulings that is harmful to the public. These things do seem to be implied in the speaker’s statements — she takes it as an a priori assumption that the judges are abusing their judicial power.

            As to John Roberts, he painted himself into a corner regarding the Privileges and Immunities Clause and his assurances to the Senate about his feelings concerning “established authority.” Now, he could get out of that situation, but not without either some tap dancing in his opinions or leaving substantially unaddressed the concern that revival of the P&I clause as a vital force in Constitutional jurisprudence necessarily involves overturning a more than century-old case upon which nearly all modern civil rights law has come to rely as part of the landscape.Report

        • Tim Kowal in reply to PPNL says:

          Of course the court increased its judicial power in Lawrence. It did so precisely by finding a right in certain activity and “reduc[ing] the power and reach of government.” This is a zero-sum game: when the Court decreases the legislature’s power, it increases its own. We can argue whether these are good things, but it’s not debatable that this was an increase of judicial power.

          This is exactly where Bork’s thinking was so tempting, because at bottom, once we reject a strict interpretivism, it’s very difficult to find a limiting principle in cases like Lawrence. The Constitution does not prohibit the state from legislating sexual conduct any more than it prohibits the state from legislating plastic grocery bags. We can propose judicial theories that give sexual liberty greater weight, but these are post hoc theories. No one voted on them. And indeed they are invented for the very purpose of reprovisioning the people’s will expressed in a duly enacted document into a tool that may be used antidemocratically to achieve ends the people never contemplated.

          But these are not the most interesting or problematic cases from a policy standpoint. They’re just the sexiest (pun intended). In 1972, SCOTUS decided Lau v. Nichols, holding English-language education to non-English-speaking students was an unconstitutional denial of equal protection, causing a surge in bilingual education and hiring of bilingual instructors, which reduced funding for other children and resulted in less instruction time where students had to sit through the same lesson in multiple languages. Costs for bilingual education tripled nationally in a decade. Also, because the Court did not specify what alternative education must be provided, organized ethnic activists now had leverage to push for bilingualism, using the threat of lawsuits and political charges of discrimination and racism against school systems which resisted the activists’ agenda. These effects hit black students the hardest. In San Francisco, for example, district administrators told the San Francisco Examiner the number of black kids assigned to bilingual classes were just three, but then later had to adjust that estimate to about 100. The real figure: More than 750. Thomas Sowell, Inside American Education (p. 77).

          In Furman v. Georgia in 1972, SCOTUS temporarily invalidated the death penalty, which was followed by an uptick in violent crimes to rise in many states. By the 1990s, those states that had reinstated the death penalty saw the largest drop in their murder rates. In 1977, Trimble v. Gordon struck down state laws that “promote legitimate family relationships” that distinguished between the offspring of married and unmarried parents.

          SCOTUS’s lackluster success in policymaking caused its prestige to erode by the 1970s, and state courts became more inspired to experiment on their own. Jon Teaford records in The Rise of the States that one state supreme court justice complained: “A lot of Supreme Court doctrines are no longer persuasive, but filled with fuzzy, soft terminology which has no cutting edge. When the Court’s doctrinal cogency begins to fall apart, we have states saying, in effect, `We don’t have to do it that way. In other words, the U.S. Supreme Court was not doing a very good job of interpreting the federal constitution, so there was no compelling argument for the state courts to interpret parallel state constitutional provisions in accord with federal rulings. Frankly, an increasing number of state supreme court justices felt they could do better than Burger and his colleagues.”

          So in 1971, the California Supreme Court decisions in Serrano v. Priest in 1971 which created a fundamental right to education, leading to Serrano II, requiring property taxes be collected by Sacramento, who would apportion to the school districts. This eliminated the desirability of the property tax, which the way consumers “shopped” for municipal services, thus leading to the “tax revolt” in 1978, installing Prop 13 as a political reality that Californians struggle to navigate to this day.

          As school performance was sagging across the nation, New Jersey’s courts also tried their hand at school policy, handing down nine decisions between 1973-1994 requiring billions of state expenditures—with no appreciable results. Former governor Thomas Kean remarked that “All this taxpayer money has accomplished nothing. Test scores haven’t risen; in fact, in some cases they’ve fallen. Dropout rates haven’t improved much either. In fact, the evidence is clear. After all the rhetoric and money, the poorest children of the state continue to be warehoused rather than taught.”

          I do not doubt the motives of the jurists who write these opinions. But I believe they mistakenly understand the function of their office is to spare the people the trouble of governing themselves, as if by some combination of legislation and judicial intervention, the people need not ever suffer any bad laws. I think the good Judge Bork took his interpretivism too far, and that he is wrong that our Constitution and our Founders were not informed by the natural law. But given that so few today understand the natural law or how to apply it, I cannot count it too harshly against him.Report

          • PPNL in reply to Tim Kowal says:

            Will H.

            Yes those are hot button issues but the point is that without them there would be virtually no complaint about excessive judicial power. My point is that complaints about judicial power are usually purely politically motivated complaints against decisions disagreed with. The irony is that these decisions usually decrease government power. The worst scotus decisions are usually the ones upholding government power.

            I’m not getting the relevance of the posted video. I can’t see that Bork’s philosophy would do anything but make the situation worse.

            And Bork agreed with slaughterhouse.Report

          • PPNL in reply to Tim Kowal says:

            I do not agree that Lawrence increased judicial power. If I did I would also have to agree that Loving increased judicial power since there is no inherent right to marry different races in the constitution. I could even claim that making it illegal for me to mount a anti-aircraft battery on my roof violates my right to keep and bear arms. The problem is that our right to arm is from one sentence in a document that is over two hundred years old. The federal courts have always had the power and responsibility to rule on the constitutionality of laws according to a constitution written centuries ago and enforced in a modern technological society. A strict interpretivism isn’t really an option. After 200 years all theories are post hoc. It is a difficult job that they sometimes get wrong but there is absolutely nothing special about Lawrence. They have been getting things partly right and partly wrong for a very long time.

            I also do not agree that Lawrence implies some kind of zero sum game. The courts do not have power that they did not have before or even use before. The only party with more power is the individual. Bork by contrast viewed the individual as property of the state.

            You site several cases but first they all seem to be state cases. States constitutions can grant far more “rights” than the federal constitution requires. I might oppose them on political grounds but without knowing the state constitution I can’t comment on the legal correctness. And second, these cases deliver a positive liberty to the individual to be delivered by government. So yes they are an expansion of government.

            Again, yes there is a danger in federal courts trying to fix every problem by constitutional means. But this is a very minor problem compared to legislatures attempting to do the same thing. The worst sin of the courts has always been being to0 deferential to the legislature. Bork absolutely would not be a cure for this. He saw slaughterhouse as a victory for judicial restraint.Report

          • Burt Likko in reply to Tim Kowal says:

            I’ve got two related thoughts here, dissonant to be sure, but not so much in opposition or even counterpoint but rather embellishment and shading.

            Cases like Serrano and Lau do indeed have profound unintended and unanticipated consequences. In practice, I’m not entirely sure that legislatures are any better than courts at discerning what these might be and sculpting ways to mitigate them. (I’d agree that in theory legislatures have more tools available to do this, but in practice they don’t seem to use them very much, or very well when they do.)

            But I don’t think that courts happily take on those sorts of decisions. Most jurists render decisions like this unhappily indeed. They do them in part because legislatures, often reflecting the mixed political will of an electorate yet unsettled on a tough issue, do not seem able to address the problems raised in any effective manner and profound injustice results from whatever solution — whether the result of one side of a political debate dominating the levers of policymaking, or the result of a close split of power resulting in expensive compromises accomplishing nothing and satisfying no one.

            It’s not fair, I think, to point to certain bad policy outcomes and imply causation from judicial action. Crime rates were already on the rise by 1972 when Furman was decided and in retrospect, they peaked at almost exactly the time of that case and thereafter declined somewhat. Having declined, risen, and then declined again, crime rates were at another spike and possibly declining again on their own when capital punishment was effectively reinstated in the late 1980’s and early 1990’s. Consider, for instance, homicide rates, which approximate most violent crime:

          • Burt Likko in reply to Tim Kowal says:

            (continued from previous comment)

            Now, it’s true that FBI notes that property crimes seem to have different rates historically than violent crimes, roughly tracking (unsurprisingly) macroeconomic cycles of expansion and recession. But I don’t think it’s fair to relate judicial intervention in the issue of capital punishment as a single or even a substantial cause in reduction of violent crime rates. The causes of the generation-long rise in violent crime and its subsequent return to 1950’s-era levels are very uncertain and probably unknowable. The Freakonomics explanation (lots of future criminals were aborted and thus were never born to enter criminal careers in their teens through their thirties) may be a little too clever and too glib but the real issue with it is that it too suffers from single-source explanations.

            I wouldn’t suggest that judicial policymaking, when it happens, is consequence-free. Nor would I suggest that courts should tread with [edit to add: “anything but”] great caution and restraint when they do make policy. My concern is when we talk about judges arrogating power to themselves that power is typically exercised in the form of invalidating policies crafted by a legislature rather than simply drafting laws themselves. Lau did not directly mandate bilingual education, it said that trying to teach kids who don’t speak English in English is not really giving them an education at all and therefore not treating them equally. Bilingual education was the best response that the legislature could think of to the Lau decision for quite some time and this sub-optimal policy was poorly and expensively implemented by the schools thereafter. I don’t pretend to know if the present-day solution, which to my knowledge is accelerated ESL education and subsequent remedial-level classes after minimal English proficiency is attained, does the kids a much better service and I don’t pretend to know of any better “third way” policy solutions to this problem. I do think it’s unfair to lay such large portions of the blame for sub-optimal policies and bad side effects on the courts.

            These kinds of problems would still manifest if courts were uniformly more modest when confronted with problems like these. There would be a different set of problems to confront if courts are too modest when faced with tough decisions. The root issue is that human beings are involved and not robots, so there are always going to be complexities and complications arising from any substantial action when taken by anybody. This is why we have governments in place on a permanent basis and not simply a set of immutable laws handed down from time immemorial–so the laws can dynamically respond to real life issues. Unfortunately, that requires continuously looking for those issues and responding to them. The courts do have a legitimate and appropriate role to play in that process. For the most part, I think the role they have played has been within appropriate boundaries.Report

            • These are very well-thought out comments.Report

            • Tim Kowal in reply to Burt Likko says:

              Burt, how do you determine what the “legitimate” role is for the courts to play, and whether they have been playing them within “appropriate boundaries”? Again, this is why Interpretive theories Are so appealing, because they provide at least some standard. the only other standard that seems to be advanced is something like an “A for effort” standard.Report

              • Burt Likko in reply to Tim Kowal says:

                There is, of necessity, no bright-line rule. I am of the opinion that even for a jurist like Bork was, there is actually no bright-line rule and much of what Bork purported to be “interpreting” and “applying” the law was sub rosa judicial lawmaking. As I see it, courts inherently make law simply through the process of ruling on individual cases, and there’s no way to avoid that unless we throw the concept of stare decisis out the window.

                Although I resist the notion that a bright line can be drawn, I’d say that the line has very likely been crossed when judicial power is used to exert a governmental function explicitly given to another branch of government. A case like Missouri v. Jenkins is a very strong candidate for excessive use of judicial power. The Constitution explicitly gives to a legislature and to a state the exclusive power to raise taxes, and judicial use injunctive power to force a legislature to exercise its exclusive power to set taxes is worrisome indeed. In that case it was a Federal court enjoining a state legislature so there are Ninth and Tenth Amendment issues too. It would be shocking if the courts ordered the Governor of a state to impose her veto on legislation, and I find it equally breathtaking that the court would order a legislature to raise taxes.

                I hope this answers your question but I fear it does not.Report

              • Tim Kowal in reply to Burt Likko says:

                We can never know whether or what sub rosa motives are at work, and casting aspersions of one jurist’s secret motives just invites the casting of aspersions as to another’s. Which is how we welcomed Borking into the lexicon. As I said, it’s probably natural that it happened given the burgeoning power of jurists, but the whole thing – that burgeoning power and the casting of aspersions – is ultimately not befitting a free and viable republic.

                Once we put down our stones, we can only work with the standard that judges actually advance. And Bork advanced as clear a standard as any, undesirable as some of the outcomes would be. But whether bright or subtle, there must be a line. Citizens who are ruled by laws demand no less. The threat of “Borking” has accelerated a retreat from articulating such principles toward fuzzier lip service to “empathy” and “experience.”Report

              • Burt Likko in reply to Tim Kowal says:

                Point taken (we can never truly know any judge’s true motives). Better, then, that a judge at least be forthright about her motives and thought processes. Agreed further that judges must be respectful of their roles in the generally democratic system of government.

                As to Constitutional interpretation, setting bright line rules for a fundamental law that is written in the form of general statements of individual rights is always going to be something of a chimera. I am dubious that such a rubric can exist in practice and agnostic about it even as a theoretical matter.Report

              • Don Zeko in reply to Tim Kowal says:

                It’s not obvious to me why we need some first-principles derived standard for when and where courts should exercise power over the legislature. The courts are perfectly capable of estimating the likely effects of their decisions, evaluating the effects of those decisions after the fact, and reacting to real or expected pushback from the political branches. I would submit that these types of calculations have much more of a practical effect on the court’s brazenness or lack thereof than the abstract judicial philosophies that the relevant justices identify with.Report

            • PPNL in reply to Burt Likko says:

              It has been my understanding that it was drug violence that drove that drove violent crime rates. I also seriously doubt drug lords ever feared the death penalty from government more than the death penalty from each other.Report

            • Tim Kowal in reply to Burt Likko says:

              I do not intend to overemphasize the connection between Furman and homicides. I acknowledge homicide and violent crime rates generally stem from a multitude of factors. I share your reaction to the Freakonomics observation/argument – very interesting and there’s probably something there, even if it seems a bit too clever. But crime rates occurred over a couple of decades of extreme cultural and institutional flux – break up of the family, experimentation in education, women beginning to join the workforce, lazy white men who previously had jobs “by default,” but were suddenly being replaced by women and minorities, began taking to the couch in droves, and so on.

              Courts played an interesting role in these things, to be sure. In fact, states, regarded as ineffective and unresponsive early in the 20th century in comparison with an increasingly vigorous federal government, including federal courts, became aware they needed to shape up and become more professional if they were going to keep their place in our federal system. By mid-century, they had shed the “citizen legislature” vibe and become professional, with legislative research services and full time legislatures – no more farmer-legislators coming up to the capital a couple weeks a year.

              But we’re talking is here when the relevant question is ought. Ought the courts have the role they’ve played? Was it their role? In the examples I cited, I think the answer is no, regardless of the consequences. Holmes said he’d help his fellow citizens go to hell if that’s what they wanted. I would not go that far: the courts cannot apply laws that would destroy the republic. That’s the classified “fourth directive.” I’d argue that Brown v. Board might fall into that category.

              Lau, on the other hand, did not. I’m very skeptical of applying constitutional principles in schools in the first place – the Bill of Rights makes for lousy school bylaws. Students are not the same thing as citizens. If the first congress had intended the BoR to be applied to the states, I suspect they’d have drafted it much differently. As for the Lau decision, all on its own, it might not have resulted in the destructive policies that ensued. But as it happens, there are interests groups that stand to profit from education policy, and uncertainty in the law makes strong leverage for those groups. If judges are going to go off book in promulgating constitutional law, they have to consider these ugly effects, too.Report

          • Mike Schilling in reply to Tim Kowal says:

            ?Of course the court increased its judicial power in Lawrence. It did so precisely by finding a right in certain activity and “reduc[ing] the power and reach of government.” This is a zero-sum game: when the Court decreases the legislature’s power, it increases its own.

            When the Court reduces the power of the legislature by striking down an unjust law, it increases the power of the people as well. That’s not zero sum.Report

  2. Burt Likko says:

    Note: I wrote the original post in some haste, and I’ve cleaned up a bit of my original writing just a bit from the originally-published version. My apologies for any errors.Report

    • zic in reply to Burt Likko says:

      I miss working with an editor. Blog editors would be a gift of the season; and I never asked if there were any here?

      Thank you, Burt. 3rd day of weather; t’was snow, now falling slush and freezing rain and joints that all feel like balloons. Migraine, no headache, thanks to the wood stove; a microcosm of adjusted air pressure.

      I’ll read it again after.

      And thanks for the link to trub okkil’s piece, too.Report

      • NewDealer in reply to zic says:

        On the first day of Christmas my true love gave to me,
        A copy editor in a pear treeReport

      • Patrick Cahalan in reply to zic says:

        Blaise has edited one of my pieces, and I’ve given feedback to Tod. We call on each other for help.

        Probably not often enough, especially in my case; I have a tendency to adore the comma, and the semicolon, and… perhaps a bit too much… the ellipsis.

        I often write commentary like I talk, and my small-to-middlin’ blog posts often suffer the same problem.Report

        • Glyph in reply to Patrick Cahalan says:

          E-mail at my job prompts me to use parentheticals a lot (because there are always exceptions and/or qualifications to any declarative statement you can make); and this habit has infected my non-work writing to a frustrating degree (though on the plus side parentheticals can be helpful at heading off nit-picking objections).


  3. Jeff No-Last-Name says:

    “Bork went on to work for the American Enterprise Institute”

    For me, if there was ever any doubt that he was unfit for the high bench, that statement there clobbers it with a two-by-four.

    I won’t cast any (further) aspersions.Report

  4. NewDealer says:

    Interesting essay.

    I think Posner was opposed for more than the views outlied here. He was also opposed for his views against the Civil Rights Act and how he thought that racism was bad but there still needs to be a right to discriminate. He did not seem to think that the rights of minorities to fully participate in economic and civic life probably should trump the rights of bigots both legally and morally.

    Bork’s confirmation was not so much Fort Sumter but Shiloh, the first battle when we realized things we going to be ugly and ugly for a long time. The modern culture already started in the 1960s-70s with the rise of the hippies and the silent/moral majority. The Supreme Court had already filed decisions in Miller v. California, Roe v. Wade, Falwell v. Hustler by the time Bork was nominated. Rehinquist (who was just as noxious as Bork) survived two Senate confirmation hearings. Scalia survived his.Report

  5. greginak says:

    It is always interesting how people focus on Bork’s legal views, not they aren’t an obvious topic, but seem to breeze over his role in firing the IG of Watergate. That seems like the kind of thing that should follow you and sort of big item regarding a reputation. Somehow he was a member in good standing, at least for some, in the important and very moral peoples club.Report

    • NewDealer in reply to greginak says:

      One obituary rued that the Saturday Night Massacre was largely absent from mentions of his biography.

      I was alive during his confirmation process but not during Watergate. Not that Borking was one of my memories from being alive back then.Report

      • Will H. in reply to NewDealer says:

        Personally, I believe that his involvement in Watergate had as much to do, if not more, with mobilizing opposition against him than his views; that people harped on his views more because it was more seemly to do so.Report

        • Derp de Derr! in reply to Will H. says:

          Yeah, because it couldn’t be that Bork who was a segregationist, birth-control-ban loving, school-creationism supporting rogue jurist who also didn’t think evidence obtained in illegal warrantless raids or state-sponsored censorship of artists and journalists was a problem, was absolutely the sort of man who never should have been considered for the Supreme Court in the first place. Or maybe the critics had it right when they were looking at that misanthropic old throwback’s views and saying they wanted him nowhere near a judicial bench.Report

          • Don’t get me wrong, Derp, I’m glad we’ve had Kennedy instead of Bork on the High Court too. But this comment is exactly what it means to “Bork” someone. Have you ever read an opinion that Bork wrote as a judge? Have you read his books or his own explanation of his judicial philosophy? Or is your understanding of what Bork was all about as a judge based on Ted Kennedy’s “Robert Bork’s America” speech and its rhetorical cousins?Report

  6. Tim Kowal says:

    A few years ago, Bill Maher told James Carville the Democrats are to blame for the politicization of judicial appointments because of what they did to Judge Bork. I’ll leave this to Burt and others to debate, but after thinking about it, it doesn’t matter who’s to blame, because it was inevitable anyway. The power to appoint SCOTUS justices is a significant source of overall power in the modern presidency. And it is not plausible to draw an easy link between the “democratic process” in electing the president and the ideological makeup of the Court: very few people give the appointment power a second thought when voting for president.

    The Founders saw little problem in the undemocratic nature of the Court since the Court was perceived to have such little influence. The Court’s steep rise of power in the American political system poses a threat to its democratic legitimacy. The “politicization” of appointments is probably just the most natural way to fill that gap. But it’s certainly not a very elegant, or effective, or, come to think of it, democratic, way to settle questions of the Court’s ideology or jurisprudential model.

    I’m still intrigued by Jonathan Turley’s idea to increase the size of the Court from 9 to 19.

    • Jaybird in reply to Tim Kowal says:

      If it wasn’t Bork, something very interesting happened a few mere weeks later with Douglas Ginsburg. *THAT*, if you ask me, was what communicated that something wacky was going on.Report

    • Mike Schilling in reply to Tim Kowal says:

      The movements to impeach Earl Warren and William Douglas precede Bork by decades. The latter got as far as Congressional hearings in 1970, with then-Congressman Jerry Ford testifying against Douglas for his liberal opinions, and his “defense of the filthy film I Am Curious (Yellow). Maher was, as usual, more interested in being provocative than in being accurate.Report

    • Michael Drew in reply to Tim Kowal says:

      I’d like to hear Turley on why to stop at 19. I honestly think 51 or 101 (obviously not all added by one president) would bring about even more preferable results. These people simply have too much relative individual power right now.Report

      • Tim Kowal in reply to Michael Drew says:

        There has to be a level of collegiality where the jurists have a meaningful opportunity to share their reasoning with and possibly persuade one another. At some level, that gets lost, and the judges are just voting, not exercising judicial power.Report

        • Michael Drew in reply to Tim Kowal says:

          There are lots of courts with just one judge, and hence no persuasion. Are those judges not exercising judicial power? And I don’t see why, either privately or in session, someone’s argument should matter less to you because the two of you have 49 peers rather than seventeen. But I’d settle for 29 – would that allay these concerns? Professor Turley would be disappointed at how little would change if we stopped at nineteen.Report

        • Michael Drew in reply to Tim Kowal says:

          …He does raise I think the best reason a high number might not work – confirmation problems and/or getting to the number in a way that doesn’t throw the ideological balance too far to one side in the short term. He suggests having any president add only 2 justices per term. At that rate, it’d take eighty years or so to get to ~50. I’d be okay with that, but you’d almost just as well say that that’s the system for the time being – new justices are added indefinitely at that rate until the Court is the size wanted. I’d be okay with that as well, actually – in an imaginary universe in which there is a consensus for a larger Court but not about just how big it should be.Report

        • Burt Likko in reply to Tim Kowal says:

          This comment make me chuckle. In agreement, and in coincidence. I’ve just spent a fair amount of time looking into James McReynolds’ career on the Supreme Court for a post currently in development. Ugh, what an unpleasant man Justice McReynolds must have been!Report

  7. Shazbot5 says:

    It turns out resistance isn’t futile after all, eh?

    Oh wait, that was my comment for when the Borg die.

    Carry on.Report

  8. BlaiseP says:

    Robert Bork… where to start. He was on the wrong side of every issue he faced. Brilliant thinker. Absolutely wrong. Can you imagine a revenant Bork now appearing before Congress, having argued for a poll tax, against gays, against blacks, against civil rights, for executive supremacy, against right to privacy? They’d vote unanimously against him going to SCOTUS.Report

    • NewDealer in reply to BlaiseP says:

      I am not so sure about your last sentence but otherwise spot-on.Report

      • Mike Schilling in reply to NewDealer says:

        What ND said. The 31 who voted against Sotomayor for being a racist who lacked judicial temperament would be for him unanimously.Report

        • Mike Schilling in reply to Mike Schilling says:

          In other words, Bork had the most important qualification for any office: he drives liberals crazy.Report

          • NewDealer in reply to Mike Schilling says:

            This seems to be the driving ID of many on the Right for such a while and it really perplexes me.

            I see it most in the Palinista set. There whole reason for existence seems to be “annoy a liberal”. There seems to be a whole cottage industry devoted to making t-shirts and bumper stickers with slogans that are just designed to rib on liberals and often in very junior high school ways.

            I am amazed and perplexed at how the populist-Right wing has managed to create a whole strawmen out of liberals and that somehow things like health insurance and welfare are really designed to make people unhappy. This is borderlander identity gone wild.Report

  9. Damon says:

    I was becoming politically aware during the Bork fiasco. I credit my watching and reading all the various drama about the nomination to helping me understand constitutional issues and the theories of originalism, etc., and my general disgust for politicians. In that sense, he was very important. 🙂Report

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